Avaya Inc.

Patent Trials and Appeals Board

Nov 30, 2020

2019002897 (P.T.A.B. Nov. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/921,652 10/23/2015 John F. Buford 648.0145 5571
93379 7590 11/30/2020
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
KHAN, USMAN A
ART UNIT PAPER NUMBER
2696
NOTIFICATION DATE DELIVERY MODE
11/30/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
pair_avaya@firsttofile.com
sarah@setterroche.com
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN F. BUFORD and MEHMET C. BALASAYGUN

Appeal 2019-002897
Application 14/921,652
Technology Center 2600

Before JAMES R. HUGHES, JOYCE CRAIG, and
MATTHEW J. McNEILL, Administrative Patent Judges.

HUGHES, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Claims 1–20 are pending, stand rejected, are appealed by Appellant,
and are the subject of our decision under 35 U.S.C. § 134(a).1 See Final Act.
1; Appeal Br. 2.2 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Avaya Inc. See
Appeal Br. 2.
2 We refer to Appellant’s Specification (“Spec.”), filed Oct. 23, 2015
(claiming benefit of U.S. Provisional Application No. 62/137,921, filed Mar.
25, 2015); Appeal Brief (“Appeal Br.”), filed Nov. 1, 2018; and Reply Brief
(“Reply Br.”), filed Feb. 28, 2019. We also refer to the Examiner’s Final
Office Action (“Final Act.”), dated May 31, 2018; and Answer (“Ans.”),
dated Dec. 31, 2018.
Appeal 2019-002897
Application 14/921,652

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CLAIMED SUBJECT MATTER
The invention, according to Appellant, generally relates “to video
image manipulation and, in particular, to replacing background portions of a
video image.” Spec. ¶ 2. The invention uses a plenoptic camera with an
array of micro lenses that can be used to calculate a relative distance for
each pixel in an image. Id. ¶ 25. In particular, the invention generates a
range image that indicates pixel distances from the camera, where a pixel
distance may correspond to an individual pixel or a group of pixels. Id. ¶ 28.
Based on a pixel distance threshold, the invention determines pixels that
correspond to background pixels. Id. ¶ 29. Once identified, the invention
replaces background pixels with replacement background pixels. Id. ¶ 31.
Claim 1 (directed to a method) and claim 11 (directed to a video
processing system) are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of replacing a video background in real-
time, wherein the video comprises a plurality of image frames,
the method comprising:

generating a range image from a subject image frame of
the plurality of image frames, wherein the range image indicates
pixel distances from a plenoptic camera that captured the
plurality of image frames;

identifying background pixels that represent a background
portion of the subject image frame based on the range image; and

replacing the background pixels with replacement
background pixels in the subject image frame.

Appeal Br. 10 (Claims App.).
Appeal 2019-002897
Application 14/921,652

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REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Cutler et al.
(“Cutler”)
US 2014/0176663 A1 June 26, 2014

REJECTION3
The Examiner rejects claims 1–20 under 35 U.S.C. § 102(a)(1) as
being anticipated by Cutler. See Final Act. 4–12.
ANALYSIS
The Examiner rejects independent claim 1 (as well as independent
claim 11, and dependent claims 2–10 and 12–20) as anticipated by Cutler.
See Final Act. 4–12; Ans. 3. In particular, the Examiner finds Cutler
discloses “generating a range image . . . wherein the range image indicates
pixel distances.” Final Act. 4; Ans. 4–9; Appeal Br. 10 (Claims App.)
(claim 1).
Appellant contends that “Cutler does not disclose anything analogous
to the range image of claim 1” and “Cutler fails to disclose anything related
to pixel distances from a plenoptic camera.” See Appeal Br. 6–7. We agree
with Appellant that the Examiner-cited portions of Cutler do not disclose

3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125
Stat. 284 (2011), amended 35 U.S.C. § 102. Because the present application
has an earliest effective filing date (Mar. 25, 2015) after the AIA’s effective
date (March 16, 2013), the AIA version of § 102 applies. In the Final
Rejection, the Examiner refers to “pre-AIA 35 U.S.C. 102(a)(1)” in finding
claims 1–20 to be anticipated. Final Act. 4 (emphasis added). We deem this
to be harmless error. The section of law the Examiner quotes is in fact from
§ 102(a)(1) under the AIA. See id.; AIA, 125 Stat. at 285–286.
Appeal 2019-002897
Application 14/921,652

4
“generating a range image . . . wherein the range image indicates pixel
distances.” Appeal Br. 10 (Claims App.) (claim 1).
Cutler describes a privacy camera “configured to record images and
includes a privacy mode that displays a region/object(s) of interest in focus
and other objects, such as objects in a background, not in focus (e.g.,
blurred) and/or the background replaced with an image/fill.” Cutler ¶ 16. In
an embodiment, the privacy camera “is a light field (plenoptic) camera.” Id.
For background replacement, “the min/max foreground depth is determined
and the background is replaced with an image and/or fill.” Id. ¶ 35. “For
example, the foreground depths (min, max) may be determined
automatically by detecting the persons(s) participating in the video
conference and/or manually by receiving the selections from a user.” Id.
The Examiner has not shown that Cutler’s process of replacing the
background in an image captured by a plenoptic camera involves generating
a range image that indicates pixel distances, as claimed. The Examiner
asserts “that the Range image is nothing more than collection of data
representing distances.” Ans. 5. It is true that the range image “may never
actually be displayed but, instead, may merely exist as data in [a] video
communication environment.” Spec. ¶ 47. Nevertheless, the Examiner has
not pointed to, and we see no disclosure of, using data indicating distances
of pixels or groups of pixels from the plenoptic camera to identify
background pixels in Cutler. The Examiner points to Cutler’s description
of “a failure rate of pixels within one or more of the cameras may be
compensated for based on the other cameras in the array” (Cutler ¶ 23) to
show that Cutler’s “system captures data in pixels hence the distances deal
with pixels” (Ans. 8). We agree with Appellant (see Reply Br. 2–3),
Appeal 2019-002897
Application 14/921,652

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however, that the mere fact that a camera may capture pixel data does not
in itself show generating a range image with pixel distances to identify
background pixels.
Consequently, we are constrained by the record before us to find that
the Examiner erred in finding that Cutler anticipates Appellant’s claim 1.
Independent claim 11 includes limitations of commensurate scope. Claims
2–10 and 12–20 depend from and stand with claims 1 and 11.
Accordingly, we do not sustain the Examiner’s anticipation rejection
of claims 1–20 based on Cutler.
CONCLUSION
Appellant has shown that the Examiner erred in rejecting claims 1–20
under 35 U.S.C. § 102(a)(1). We, therefore, do not sustain the Examiner’s
rejection of claims 1–20.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 102(a)(1) Cutler 1–20
REVERSED